As of October 4, 2021, the 30-day notice requirement for filing a residential eviction suit for failure to pay rent has expired and Governor Polis has stated that he does not intend to renew that protection.

Governor Polis had previously extended Executive Orders D 2021 122 and D 2021 124 through October 3, 2021.  These orders (and the prior orders that they extended) provided assistance to tenants at risk of eviction due to the COVID-19 Pandemic.  A key protection, which had existed in some form since June of 2020, required 30 days’ notice for non-payment of rent occurring on or after March 10, 2020, before an eviction suit could be filed, giving tenants that period of time to cure non-payment.  Colo. Exec. Order No. D 2021 122(ii)(I)(1) (Aug. 6, 2021).  This order also required landlords to notify tenants of rent-assistance resources available from the Department of Local Affairs (“DOLA”).  Id, at subsection (ii)(I)(3). 

Broad federal protections from eviction provided under the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) were replaced by limited protections provided by Orders issued by the Centers for Disease Control and Prevention (“CDC”) at 86 Fed. Reg. 43244 (Aug. 6, 2021), which included a federal moratorium on residential evictions for failure to pay rent.  However, the U.S. Supreme Court ruled on August 26, 2021 that the CDC had exceeded its authority in imposing a nationwide moratorium on evictions, effectively ending federal protections on that issue and leaving the question to individual States.  Alabama Assoc. of Realtors et al. v. U.S. Dep’t of Health and Human Serv.’s, 594 U.S. ___ (No. 21A23, August 26, 2021).

As of October 4, 2021, there are no Colorado or federal eviction relief protections relating to COVID-19.  A renters’ obligation to pay rent was never relieved by any State or federal law, and landlords are no longer required to provide tenants with additional time (beyond the 10-day notice requirement of the Forcible Entry and Detainer statutes, C.R.S.§ 13-40-101, et seq.) to cure failure to pay rent as grounds for eviction.  Additionally, the State prohibition against charging late fees on unpaid rent has lapsed; late fees can be assessed moving forward but cannot be charged retroactively.

Landlord Best Practices.

  1. Colorado Landlords MUST provide tenants with 10-days’ notice of any default for non-payment of rent occurring on or after October 4, 2021, before initiating or filing action for forcible entry and detainer (a.k.a. eviction).  During this period, tenant may cure any default.
    • SB21-173 took effect on October 1, 2021, so Colorado Landlords CAN NO LONGER:
    • Enforce unreasonable liquidated damages clauses assigning a cost to a party stemming from a rental violation or an eviction action;
    • Enforce one-way fee-shifting clauses for attorneys’ fees and court costs;
    • Charge late fees to a tenant if the rent payment is less than 7 calendar days late;
    • Charge late fees in an amount that exceeds the greater of:
    • fifty dollars ($50), or
    • five percent (5%) of the amount of past due rent.
    • Assess a late fee if said late fee was not disclosed in the rental agreement;
    • Remove, exclude, or initiate eviction procedures against a tenant solely because of the failure to pay one or more late fees;
    • Terminate a tenancy, estate at will, or a lease in a mobile home park because the tenant fails to pay one or more late fees;
    • Impose a late fee on a tenant for any portion of rent that is the responsibility of a rent subsidy provider;
    • Impose more than one late fee per late payment;
    • Assess interest on late fees;
    • Recoup any amount of a late fee from a rent payment made by a tenant; or
    • Charge a tenant a late fee unless the landlord provided the tenant written notice of the late fee within 180 days after the date upon which the rent payment was due.
  2. A landlord who violates any of these provisions must pay a fifty-dollar ($50) penalty to an aggrieved tenant for each violation.
    • Otherwise, the landlord has seven (7) days to cure the violation, commencing upon receipt of notice of the violation.
    • A landlord that fails to timely cure a violation is subject to civil action from the aggrieved tenant.
  3. A tenant is no longer required to post a bond to assert a breach of warranty of habitability defense.

Tenants’ Rights Under SB21-173 (effective October 1, 2021).

  1. Cure unpaid rent if served with a notice of default.  Once a tenant receives a notice of default for non-payment, the tenant has 10 days to catch up on the missed payments before the landlord can initiate an eviction suit.
  2. Enjoy the benefits outlined above from SB21-173.

In order to ensure compliance prior to bringing an eviction action, or to respond to an eviction suit that has not met these pre-conditions, please reach out to Patrick M. Haines.

Authors: Patrick Haines and Matt Schlager

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